Peters v R
[2013] NSWCCA 324
•20 December 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Peters v R [2013] NSWCCA 324 Hearing dates: 29 October 2013 Decision date: 20 December 2013 Before: Latham J at 1
RA Hulme J at 94
Barr AJ at 95Decision: 1.Leave to appeal against sentence granted
2.Appeal dismissed
Catchwords: CRIMINAL LAW - application seeking leave to appeal sentence - plea of guilty - aggravated break, enter and detain for advantage - applicant secured box allegedly containing explosives around neck of school student in her home in extortion attempt - whether trial judge erred in approach to applicant's mental illness - whether applicant's psychiatric condition causally related to offending conduct - whether House v The King error - whether Muldrock error - whether trial judge failed to make a finding regarding prospects of rehabilitation - whether trial judge erred in failing to make a finding of special circumstances - whether sentence manifestly excessive - sentence not plainly unjust - leave to appeal granted - appeal dismissed Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194
Aoun v R [2011] NSWCCA 284
Courtney v R [2007] NSWCCA 195
Devaney v R [2012] NSWCCA 285
DPP v JG [2010] NSWCCA 222 ; 220 A Crim R 19
Furia v Regina [2010] NSWCCA 326
House v The King (1936) 55 CLR 499
Jiang v R [2010] NSWCCA 277
Lauritsen v The Queen (2000) 22 WAR 442; 114 A Crim R 333
Leach v R [2008] NSWCCA 73
Louizos v R [2009] NSWCCA 71 ; 194 A Crim R 223
Michael v R [2011] NSWCCA 122
Miller v The Queen [1999] WASCA 66
Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120
R v Choi [2010] NSWCCA 318
R v Cramp [2004] NSWCCA 264
R v O'Donoghue (1988) 34 A Crim R 397
R v Engert (1995) 84 A Crim R 67
R v Fidow [2004] NSWCCA 172
R v Israil [2002] NSWCCA 255
R v Israil [2002] NSWCCA 255
R v Louizos [2009] NSWCCA 71 ; 194 A Crim R 223
R v O'Donoghue (1988) 34 A Crim R 392
R v Ramea [2013] NSWCCA 310
R v Stott [2005] NSWCCA 36
Tattersall v R [2011] NSWCCA 282
WW v R [2012] NSWCCA 165Category: Principal judgment Parties: Paul Douglas Peters - (Applicant)
Regina - (Crown Respondent)Representation: Counsel
Solicitors
T Game SC - (Applicant)
P Ingram SC - (Crown Respondent)
File Number(s): 2011/261935 Decision under appeal
- Date of Decision:
- 2012-11-20 00:00:00
- Before:
- PR Zahra SC DCJ
- File Number(s):
- 2011/261935
Judgment
LATHAM J : The applicant, Paul Douglas Peters, seeks leave to appeal against the asserted severity of a sentence imposed upon him by Zahra SC DCJ on 20 November 2012 for the offence of aggravated break, enter and detain for advantage, pursuant to s 112(2) of the Crimes Act 1900, to which the applicant pleaded guilty on 8 March 2012 in the Local Court.
The offence carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 5 years. The applicant received a non- parole period of 10 years with a balance of term of 3 years and 6 months.
There are seven grounds of appeal. The first three grounds allege error on the judge's part in his treatment of the applicant's psychiatric condition and its relevance to the sentencing exercise. The fourth ground of appeal alleges error in the judge's approach to the application of the standard non- parole period. The fifth ground alleges error in failing to make a finding regarding the applicant's prospects of rehabilitation. The sixth ground takes issue with the failure to make a finding of special circumstances and the last ground alleges manifest excess.
The Offence
The applicant was sentenced on the basis of agreed facts. It is necessary to set out those facts in some detail in order to appreciate the context of his Honour's findings in relation to the applicant's psychiatric condition.
On 3 August 2011, the victim who was studying for her Higher School Certificate trial examinations, was in her bedroom in her family home at Mosman. At about 2:15 pm, the applicant entered the home through a closed but unlocked front door. At the time he was in possession of a baseball bat and a small backpack. He was wearing a multicoloured balaclava which concealed his face.
The applicant entered the victim's bedroom, saying "I'm not going to hurt you". The victim stood up from her desk, retreated towards her bed and asked the applicant "What do you want? What are you doing?" The applicant told the victim to sit down and that "no one needs to get hurt". The victim sat down on her bed, whereupon the applicant placed the baseball bat and the backpack on the bed next to her. He removed a black box from the backpack and pushed it against the victim's throat, securing it around her neck with a bicycle lock which was attached to the box.
The victim asked the applicant what he was doing and he told her he would tell her in a minute. The applicant locked the bicycle lock, fixing the black box around the victim's neck. He then placed a purple lanyard around the victim's neck which had a USB stick, and a plastic document sleeve attached to it. The plastic document sleeve contained a two-page typed document. A label with a typed e-mail address was affixed to the box.
The applicant started to walk away and the victim asked him where he was going. The applicant replied "Count to 200 ... I'll be back ... If you move I can see you, I'll be right here". The applicant then left the room taking the baseball bat and backpack with him. The applicant was in the physical presence of the victim for a matter of minutes.
The victim was extremely frightened and sat on her bed as instructed for a short time, believing that the applicant was elsewhere in the house. After a few minutes she yelled out but there was no response. Using her mobile telephone she sent text messages to her mother and her father asking for police to be called. The victim left her bedroom, and removed the two-page typed document from the plastic sleeve around her neck.
The victim read a portion of one of the pages and saw a reference to "explosive". She immediately believed that a bomb had been placed around her neck. She again yelled out, but heard no response. The victim then called her father and asked him to ring police. The victim returned to her room and continued reading the document and saw that it contained instructions not to alert the authorities. The victim called her father back and told him not to contact police, however the police had already been notified. Police arrived soon after and entered the house. They found the victim in an hysterical state and crying uncontrollably.
The two-page document within the plastic sleeve read as follows :-
Powerful new technology plastic explosives are located inside the small black combination case delivered to you. The case is booby-trapped. It can ONLY be opened safely, if you follow the instructions and comply with its terms and conditions. For the avoidance of any doubt, I am a former Special Forces Green Beret munitions specialist, and have constructed such devices for over 20 years.
SO ACT NOW, THINK LATER, or YOU will inadvertently trigger a tragically avoidable explosion, known in the American armed forces, as a BRIAN DOUGLAS WELLS event.
DO NOT under any circumstances try to cut the wires leading to the case. DO NOT under any circumstances try to open it. DO NOT under any circumstance depress any of the four combination buttons more than three consecutive times. DO NOT excessively wet the casing. DO NOT under any circumstance heat, chill or X-Ray the casing. DO NOT call for assistance to open the case. Any breach will immediately result in a BRIAN DOUGLAS WELLS event.
If you disclose these instructions, future instructions, any correspondence, Remittance instructions enclosures, direction or any other relevant fact outlined here or elsewhere, to any Federal or State agency, the Police or FB I or to any non-family member, it will trigger an immediate BRIAN DOUGLAS WELLS event.
You will be provided with detailed Remittance instructions to transfer a Defined Sum once you acknowledge and confirm receipt of this message.
If you, the remitting party or the remitting bank IN ANY WAY try to inform the recipient bank, or any other party (overtly or covertly) of any information NOT STRICTLY REQUIRED by the remitting bank to execute the Remittance Instructions to be provided, it will trigger a BRIAN DOUGLAS WELLS event, IRRESPECTIVE if the funds are received.
Should I (or my banking advisers or embedded informants) become aware that you, your family, or any person or entity has breached ANY CONDITION, BEFORE OR AFTER the transfer of the Defined Sum, you do so at your family's own peril.
If the Remittance Instructions are executed CORRECTLY, and receipt of funds is acknowledged, I will immediately provide you with : The combination that can open the case WITHOUT triggering a BRIAN DOUGLAS WELLS event, and
An internal key to completely disable the explosive mechanisms embedded inside.
CONFIRM receipt of these instructions by CONTACTING dirkstruan [email protected]
The victim gave the police a description of the applicant. Specialist police and bomb disposal officers arrived. Shortly after 6 pm in the presence of police, the victim's father sent an e-mail to the e-mail address contained in the note. The message read "Hi my name is Bill. I am the father of the girl you strapped the device to. What do you want me to do next? Bill"
On three occasions that afternoon the applicant accessed the e-mail address but did not respond. For a number of hours the victim remained near her bedroom in the company of a police officer who facilitated the examination of the black box by police bomb technicians using photographic and x-ray equipment. The specialist officers confirmed that the device contained mechanical and electrical components. Examination of the device continued until about 11 pm when bomb disposal officers were able to confirm that there were no explosives in the black box. The box was removed from the victim's neck at around midnight. By that time, the device had been affixed to the victim for approximately ten hours.
During the time the device was around the victim's neck, she was required to support the box by holding it with her hands in case the box contained explosives. During this period of time, the victim was crying and scared for her life. She was conveyed to hospital for examination.
The device was further examined after it was removed from the victim. It was found to be a portable gun safe. The gun safe had been altered by drilling holes in the cover and feeding the cable of a bicycle lock through the holes.
Police carried out enquiries with the Internet service provider to ascertain whether there had been access to the e-mail account. The provider informed police that the e-mail account was created on 30 May 2011 from an IP address linked to O'Hare airport, Chicago, Illinois, USA. The provider informed police that the account had been accessed on three occasions and that all three occasions occurred on the afternoon of 3 August 2011 about three hours after the applicant entered the victim's house. The account was accessed at 4:09 pm at Kincumber library and at 5:25 pm and 5:51 pm at an Avoca video store.
Police attended Kincumber library and viewed CCTV footage from the library and car park. The footage showed a gold coloured Range Rover drive into the car park of the library at a time shortly before the e-mail account was accessed. The footage also showed a male enter the library wearing clothing consistent with the victim's description of the clothing worn by the person who entered the house.
Police conducted enquiries of the RTA in relation to the motor vehicle. Those enquiries identified the applicant as a person who physically resembled the male depicted in the CCTV footage recorded at the library. CCTV footage from a liquor shop adjacent to the Avoca video store also depicted a male consistent with the appearance of the applicant entering the Avoca video store at 5:24 pm and 5:49 pm on 3 August 2011. Further enquiries revealed that the applicant departed Sydney on a United Airlines flight bound for Los Angeles, USA on 8 August 2011. The applicant then flew to Louisville, Kentucky.
Further enquiries of the airline revealed that the applicant arrived in Sydney on 1 June 2011 having been on a connecting flight that departed O'Hare airport, Chicago on 30 May 2011.
On 15 August 2011, FBI Federal agents in Louisville Kentucky arrested the applicant. He was taken to an FBI agency, cautioned and agreed to participate in an interview with Australian police. The applicant made a number of admissions to being on the street of the victim's home on the day of the offence. He admitted creating the e-mail address and purchasing various items, however he denied being responsible for placing the hoax bomb around the victim's neck.
During the interview, the applicant told police that he had flown into Australia nine weeks beforehand in order to finish a book that he was writing. He said that he left after he had printed off the manuscript. He told police he had been working on the book continuously for the previous four months and that he had finished the novel on 2, 3 or 4 August. The applicant's credit card demonstrated that on 4 August 2011 an amount of $45.71 was used to pay for photocopying and binding at a stationary store.
The applicant admitted that he had set up the e-mail account at O'Hare airport on his way to Australia. He said he had set up the account as a backup e-mail address for his Hong Kong novel but he did not give the e-mail address to anyone as he did not need to use it. He said that he chose the name "Dirk Straun" as his novel is "very sort of the next generation .... And you know it's a name you don't forget".
The applicant told police that many years ago he had read the James Clavell novel "Taipan" in which Dirk Straun is the protagonist. He said that he was following the media coverage of the incident in Mosman on a Sydney newspaper online site. He said on 12 August after he arrived in the United States he purchased the novel. FBI agents found a copy of "Taipan" during the execution of a search warrant at the home of the applicant's ex-wife where he was living at the time of his arrest.
The applicant told police that he had accessed the e-mail account at Sydney University in the first few weeks of arriving in Australia and then once at a library in Gosford. He was asked whether he had accessed it at any other time and he said that he had not.
The applicant admitted that he had purchased a gun safe about a week before he went to Australia. He said that he did not create a code for the gun safe. He said that he bought a flexible bike chain and had a friend, the name of whom he provided to police, drill holes into it so he could fix the chain to the safe, so he could attach the safe to something. That person provided a statement to police in which he confirmed that he altered a gun safe for the applicant on a weekend in June 2011. The applicant told that person that he wanted the box altered so that he could store travel documents and passports in it. The witness was shown photos of the device affixed to the victim and identified the item depicted as the same model gun safe that the applicant had asked him to alter. He said the label with the "Dirk Straun" e-mail address was not affixed to the box.
In the course of the interview, the applicant said that the altered gun safe with a label affixed to it and containing details of his bank account numbers was stolen from his address in Copacabana about two weeks before the offence. He told police that he did not report the theft and nothing else was stolen. When shown the two-page document that was left with the victim that directed contact with the "Dirk Straun" e-mail address, the applicant said he had not seen it before.
The applicant admitted that he had been in Mosman at around 1:30 pm on 3 August 2011. He told police that he had been going there for a week to 10 days prior to 3 August to undertake research for his writing. The applicant said that when he was in the street of the victim's home on 3 August 2011 he saw a male who lived next door to the victim. The applicant said he knew that male from when he, the applicant, resided in Hong Kong. He told police that he waved to this man who was in his car with his wife. The applicant said that he also saw the same man again outside the Commonwealth Bank in Mosman on 3 August 2011. He also told police that he saw the male probably a week before 3 August 2011 and he had a conversation with him outside his house.
In a statement later taken from the male neighbour nominated by the applicant, the neighbour confirmed that he had spoken to a male outside his house on the Friday prior to the offence. The neighbour told police that the male said that he knew him from a previous business association in Hong Kong. At the time of the conversation, the neighbour was collecting his garbage bin from the street. That neighbour's residence is near the victim's home.
In the interview, the applicant told police that after he left Mosman on the afternoon of 3 August 2011, he drove home in his Range Rover. He had earlier admitted that he owned a metallic gold Range Rover. He was asked if he went anywhere before he went home and he said he did not. He was asked whether he was sure that was the case and he responded "absolutely".
Stills from the CCTV footage from Kincumber library were shown to the applicant by police and he was informed that at the time that the CCTV images were taken, the "Dirk Straun" e-mail address was accessed from a computer at Kincumber library. The applicant admitted that he was the person depicted in the images and that he accessed the e-mail account at that time.
The applicant was also shown stills from CCTV footage from the liquor store in Avoca Beach on the evening of 3 August 2011. He agreed that he was also depicted in those images. When asked if he went anywhere else the applicant said that amongst other places he went to a video store. He said that he went to the video store twice to log into a computer to see if he had any messages or documents on his e-mail account.
Bank records demonstrated that the credit card account of the applicant was used in the Gosford stationery store on 4 July to purchase a purple lanyard and the USB device of the same colour and brand as that placed around the victim's neck. The applicant said that he purchased the USB to store his novel manuscript and to store other material. He denied putting anything else on the USB. When asked where the USB then was, he said that he assumed the USB would be at his place.
Forensic examination of the USB stick recovered three deleted files, one of which contained a Word file which was a letter of demand in the same terms as the saved file and hardcopy document in the plastic sleeve placed around the victim's neck. That file also directed the recipient to contact the "Dirk Straun" e-mail address. Forensic analysis of the Word format revealed that it was registered to a computer with the identification "Paul P". In his record of interview with police, the applicant could not explain why the deleted file on the USB that was found with the victim was registered to a "Paul P" and claimed that everything was "a horrible, horrible coincidence."
One of the three deleted files on the USB contained a similar letter of demand, and was addressed to the trustee of the James M Cox Trust Estate. The applicant told police that he had property to the value of US$12 million tied up in a trust which was the subject of dispute. He told the police that the name of the trust was "the James M Cox Trust". When shown a copy of that deleted document, the applicant declined to further comment.
The credit card account of PD Peters was used to purchase a rainbow coloured balaclava on 16 July 2011 at a clothing store at Erina Fair. Enquiries of that store revealed that the purchase was for a multicoloured horizontal striped balaclava, consistent with that described by the victim. The applicant said he was not aware of any purchase of a multicoloured balaclava.
The credit card account of PD Peters was also used to purchase a baseball bat at a sports store at Erina Fair on 16 July 2011 shortly before the purchase of the balaclava. CCTV footage from Erina Fair centre and the sports store depicted the applicant purchasing a black baseball bat. The applicant told police he had purchased a baseball bat at the sports store to have at the house. When asked where the baseball bat was, the applicant said "obviously you know, it's probably one of the things that was nicked".
The applicant was remanded in custody in the United States awaiting extradition proceedings. On 14 September 2011 the applicant waived his right to an extradition hearing and agreed to be returned to Australia in the custody of New South Wales police. He was taken to the Surry Hills Police Centre on 24 September 2011 where he was charged. He remained in custody from that date.
Ground 1 : Error in Concluding that the Applicant's Psychiatric Condition was not Causally Related to his Offending Conduct
Ground 2 : Error in Finding that the Applicant's Mental Condition ought not have any Significant Impact on Principles of General and Specific Deterrence.
Ground 3 : Error in :
(a) his Assessment of the Severity of the Applicant's Underlying Depression and Other Symptoms of Bipolar Disorder
(b) in Concluding that it was a Possibility that the Applicant's "Stabilisation of Mood" after Entering Custody may have been Attributable to the Cessation of Alcohol Use.
The first three grounds of appeal may be dealt with together. The applicant does not allege error on the part of the judge with respect to his Honour's appreciation of the relevance of mental illness to the sentencing exercise. The judge referred to the principles expressed in DPP (Cth) v De La Rosa [2010] NSWCCA 194, R v Israil [2002] NSWCCA 255, Lauritsen v The Queen (2000) 22 WAR 442; 114 A Crim R 333, and Miller v The Queen [1999] WASCA 66. Rather, the applicant complains that the judge's conclusions, which he drew from the evidence and the application of those principles, were "not reasonably open."
On the hearing of the appeal, the applicant's senior counsel foreshadowed a challenge to the authority of R v O'Donoghue (1988) 34 A Crim R 397 as the basis upon which this Court should determine grounds of appeal alleging error as to fact finding. In that case, Hunt J stressed the nature of the jurisdiction under the Criminal Appeal Act 1912 and confirmed that error in fact-finding is demonstrated "if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself" (at 401). The applicant submits that such a test is too narrow.
In DPP v JG [2010] NSWCCA 222 ; 220 A Crim R 19 at [21] and again in Aoun v R [2011] NSWCCA 284 at [4], Basten JA queried the sufficiency of Hunt J's formulation of the test for factual errors in both conviction appeals and sentence appeals. The implied criticism of Hunt J's formulation is one of completeness, not that a different test ought to be substituted.
Aoun was concerned with a relatively straightforward finding of fact concerning whether the offender had the capacity to actually supply a quantity of drugs. Johnson J's judgment (with whom Adams J agreed) on this issue was :-
33.This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108.
34 It is important to keep in mind the limits of the jurisdiction of this Court where a finding of a first-instance Judge is challenged on appeal. A frequently cited and applied statement of principle is that of Hunt J (Carruthers and Wood JJ agreeing) in R v O'Donoghue at 401:
"It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this court is not by way of re-hearing. An appeal which is not by way of re-hearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this court has no power to substitute its own findings for those of the trial judge. The members of this court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Regina v Merritt & Roso (1985) 19 A Crim R 360 at 372-373; Regina v Kyriakou (1987) 29 A Crim R 50 at 60-61."
35 This statement has been applied in a multitude of cases, including sentence appeals where a finding of fact is challenged on appeal: R v Khouzame [2000] NSWCCA 505 at [38]-[41]; R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 573 [60]-[61]; Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252 at 265 [56]; Camm v R [2009] NSWCCA 141 at [68]-[70]; SBF v R [2009] NSWCCA 231; 198 A Crim R 219 at 335 [75].
Ultimately, not only was O'Donoghue applied in Aoun itself and the cases that Johnson J noted, but it has since been applied in R v Choi [2010] NSWCCA 318 at [55] per R A Hulme J (Giles JA and Hislop J agreeing), Furia v Regina [2010] NSWCCA 326 at [35] per R A Hulme J (Giles JA and Hislop J agreeing), Michael v R [2011] NSWCCA 122 per Garling J (Macfarlan JA and Johnson J agreeing) and WW v R [2012] NSWCCA 165 per Hoeben CJ at CL (Johnson and Button JJ agreeing).
In my view, this argument is misplaced. The judge's "findings" on the issue of his psychiatric condition were not findings of fact such as those addressed in the cases referred to above. With the possible exception of ground 3(b), which takes issue with a qualified finding of fact (namely, the reason for the applicant's improvement after entering custody), these grounds essentially attack the exercise of the judge's sentencing discretion. As Gleeson CJ said in R v Engert (1995) 84 A Crim R 67, at 1, :-
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make sensitive discretionary decisions. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law.
... It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
Accordingly, the basis upon which the judge's exercise of the sentencing discretion with respect to the applicant's mental illness ought be examined is that established by House v The King (1936) 55 CLR 499 at 504 - 505. If it can be demonstrated that the judge acted upon a wrong principle, took into account an irrelevant consideration, failed to take into account a relevant consideration, or that his assessment was unreasonable or plainly unjust, the intervention of this Court may be warranted.
In any event, the applicant's contention that the judge's findings on this issue were "not reasonably open" mirrors the basis of House v The King error. There is no need to re-visit the application of O'Donoghue in the circumstances of this case.
It must first be acknowledged that the judge's reasons extend over 49 pages of careful and detailed analysis of the circumstances of the offence (pages 1 - 8), the applicant's account provided to three psychiatrists (pages 8 - 16), the clinical observations of the applicant's mental state by Justice Health and by Dr Westmore since his arrest (pages 16 - 18), the evidence of the applicant's estranged wife (pages 18 - 19), the various psychiatric opinions regarding the applicant's mental state at the time of offending (pages 20 - 23), the motive for the offending and its relationship to the psychiatric opinions (pages 25 - 35), whether the applicant's mental state operated to reduce the applicant's moral culpability (pages 36 - 41), an assessment of the objective gravity of the offence (pages 42 - 44), and the applicant's subjective case (pages 44 - 47).
With respect to the first ground of appeal, the applicant points out that the psychiatric diagnoses of the applicant were consistent, insofar as it was generally agreed that the applicant suffered an alcohol abuse disorder and a bipolar II affective disorder including a major depressive disorder and mood changes. The applicant also noted on the hearing of the appeal that the essential difference in the diagnoses of Dr Allnutt and Dr Westmore was one of degree. The applicant acknowledges that his Honour referred to this consistent psychiatric opinion.
The finding which is said to underpin his Honour's error appears in the following passage :-
It has not been shown on the balance of probabilities that the offender's underlying mental disorders significantly impacted upon his judgment so as to reduce the moral culpability of the offender or is such that it would have any significant impact on ordinary principles of general deterrence. I am not satisfied that the underlying mental disorder affected his ability to understand the wrongfulness of his actions or to make reasonable judgments. The offender entered a house armed and disguised. He found the young girl on her own and vulnerable. At the time of placing the device he had prepared around the neck of the victim he would have appreciated the enormity of what he was doing and the terrible effect and consequence of his conduct upon the victim. He proceeded regardless. The underlying mental conditions do little to reduce the offender's moral culpability for such heinous acts.
The applicant submits that, whilst no issue is taken with the rejection by the judge of the applicant's account of his offending to the various psychiatrists, nor with the judge's finding that the applicant's motive was the extortion of money, nonetheless the trial judge focused "so closely" on the applicant's un-creditworthy account that he "failed to properly consider the powerful and unanimous evidence linking the offending conduct to the applicant's mental health problems."
That "powerful and unanimous evidence" derives from the evidence of Dr Westmore and Dr Phillips, the evidence of Ms Peters and objective features of the offence that are described in the applicant's submissions as "bizarre" and "strange".
It is not necessary to recount the evidence to which the applicant refers for the purpose of dealing with this ground of appeal. There was no failure on the part of the trial judge to properly consider the evidence linking the offending conduct to the applicant's mental illness. The judge recounted that evidence in considerable detail in the course of his remarks on sentence.
The assessment of the relevance of the applicant's mental illness begins at p 24 of the judge's remarks. Over the following 17 pages, the judge undertook a painstaking analysis of the evidence relating to the applicant's account of his offending to the various psychiatrists, the applicant's record of interview with police, objective features of the offending and the various psychiatric opinions. That analysis resulted in :-
(1) a finding, based on the applicant's record of interview with police, that the applicant's cognitive functioning at the time of the interview was not significantly impaired.
(2) a rejection of the applicant's case that his offending was designed to lead to his detection and treatment and that the applicant's behaviour related to the offending was "clumsy and amateurish".
(3) a finding beyond reasonable doubt that the applicant set in train a plan to extort money, that the offending involved significant planning over a period of time, and that the terms of the document were clearly of an extortionist nature designed to place the victim in substantial fear that she would be killed if the demand was not met.
(4) a finding that the offending was not the product of a psychotic state or the consequence of the offender assuming a character in his book.
(5) reference to a number of factors providing guidance in assessing the severity of the applicant's underlying depression and bipolar disorder at the time of the offending, namely,
(i) That there was no real basis for concluding that the applicant's answers and appearance in the record of interview were indicative of thought disorder.
(ii) That the Justice Health medical notes in the period soon after his entry into custody do not document thought disorder.
(iii) That the offender's stabilisation of mood after entering custody might, to a significant extent, be attributable to the cessation of alcohol use, on the basis that Dr Westmore noted in his report of 2 March 2012 that the applicant told him that his mental state had settled as a result of cessation of alcohol use.
(iv) That the applicant's marked change in response to medication after entering custody did not necessarily provide proof of a previous underlying psychosis.
It is at this point that the judge arrives at a final assessment of the applicant's moral culpability having regard to the consistent psychiatric opinion of bipolar II affective disorder and alcohol abuse disorder. The passage set out above upon which the applicant relies occurs in the following context :-
It is reasonable to conclude, based upon the evidence of Mrs Debra Peters, to which I have referred, that the offender was experiencing symptoms of depression at the material time of the offending and was suffering mood changes. I have referred to the evidence concerning the severity of the symptoms experienced, particularly the evidence of Mrs Debra Peters; clinical observations of the offender since he entered into custody and the opinions of psychiatrists as to the manifestations of those symptoms prior, at the time of and the period following the offending. Having considered the evidence I cannot be satisfied that the severity of the conditions significantly impaired the offender's judgment at the time of the offending. To the extent that the underlying conditions impaired his judgment, in my view, that impairment does not significantly reduce the moral culpability of the offending. It has not been shown that the underlying conditions contributed to the offending in a material way.
[The judge then refers to the absence of evidence from the applicant to explain the offending. The passage set out at [48] immediately follows.]
The offender would have been aware that after he left the victim she would have experienced considerable trauma before it was determined that the device did not contain explosives. He would have understood, at that time, in the many hours that followed she was in fear she would be killed. The photographs of the young girl with a device around her neck conveyed the terror she experienced.
It would be artificial to totally remove consideration of the offender's depressive state when setting the sentence. I propose to allow some moderation to the sentence because of the offender's depression, however the moderation is minimal. In the circumstances here, whilst the offender's depression provides some background to his offending it does not significantly reduce the weight to be given to deterrence.
Ultimately, the judge determined that the applicant had not discharged his onus of establishing a significant link between the offending behaviour and his psychiatric condition. In particular, his Honour was not persuaded that the applicant's mental illness significantly impacted upon his judgment so as to reduce his moral culpability, principally for the reason that the enormity of his criminality must have been appreciated by him at the time of the offence, yet he proceeded nonetheless.
His Honour was entitled to make an evaluative judgment in the terms that he did. It is not the case that he drew the conclusion that the applicant's psychiatric condition was not causally related to his offending conduct. Rather, his Honour drew the conclusion that it was not significantly causally related to the offending conduct.
None of the findings set out at [52] are challenged by the applicant, with the exception of (5)(iii) (ground 3(b)). I return to that matter below. The applicant does, however, place particular emphasis upon the findings at (4) and 5(iv) in support of his submission that the judge erred in his approach to the issue of mental illness. It was never the applicant's case that he was psychotic. The applicant argues that, in effect, his Honour dismissed the diagnosis of bipolar disorder and depression by discounting a diagnosis of psychosis.
I do not accept that submission. His Honour was, in his usual careful and thorough manner, addressing the opinion of Dr Phillips, who was "the only psychiatrist who .. made a clinical observation of psychosis". Dr Phillips observed that during his clinical consultations with the applicant, the applicant "lapsed into a psychotic state when referring to the book". This aspect of his Honour's remarks occupies half a dozen paragraphs in the context of a discussion about the relationship, if any, between the offending and the authorship of the book. There is no indication that the judge placed undue weight upon the absence of psychosis in order to reach the ultimate conclusion. A reference to the opinion of one psychiatrist which was at odds with an otherwise uniform diagnosis was justifiable in the interests of completeness.
It is uncontroversial that general and specific deterrence may be given less weight when sentencing a mentally ill offender because "the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his .. cognitive facilities or emotional restraints and in some instances lacks the ability to make reasoned or ordered judgments." : R v Henry & Ors. [1999] NSWCCA 111 at [254] per Wood CJ at CL. This statement is not confined to the existence of a mental disorder at the time of offending. It has been confirmed on a number of occasions since then that it also applies at the time of sentence : R v Israil [2002] NSWCCA 255 at [21] ; Courtney v R [2007] NSWCCA 195 at [14] - [16] ; Leach v R [2008] NSWCCA 73 at [10] and [11] ; Devaney v R [2012] NSWCCA 285 at [81].
The applicant's second ground of appeal is inextricably linked to the first ground, in that it relies upon error in the judge's assessment of the causative link between the offending and the applicant's psychiatric disorder. The applicant has apparently been successfully treated since entering custody. There was no sound basis upon which the judge could conclude that the psychiatric disorder was likely to persist or was resistant to treatment and therefore no sound basis upon which his Honour was required to reduce emphasis on general and specific deterrence because of a mental illness at the time of sentence : see Carlton v R [2008] NSWCCA 244 per Basten JA at [101].
With respect to ground 3(a), the applicant contends that the existence or otherwise of a causal link between a psychiatric condition and an offence is separate and distinct from the question whether general deterrence should be moderated or eliminated. The applicant then maintains that the judge erred in failing to consider "the issue of the appropriateness of applying principles of general deterrence separately from his conclusion that the offender's moral culpability was not reduced by reason of his mental illness."
This submission tends to ignore the policy reasons underlying a decreased emphasis on general deterrence, explained succinctly by Wood CJ at CL in Henry and set out at [58] above. Moral culpability for an offence is attenuated because some (albeit not all) psychiatric illnesses compromise an offender's ability to make rational decisions. It is that reduced moral culpability that correspondingly impacts upon the weight to be given to general deterrence. In addition, there is an inevitable interplay of the various factors. To the extent that there is no, or very little, causal link between a mental illness and an offence, the mental illness may nonetheless be important to considerations of community protection, rehabilitation or the need for treatment in the community : Engert at 8 ; R v Israil per Spigelman CJ at [24], agreeing with Malcolm CJ in Lauritsen v R at [48].
It is not clear how, assuming that the judge did not err in his assessment of the causative link between the applicant's bipolar disorder and the offending, any reduced weight on general deterrence arose because of that (successfully treated) condition at the time of sentence. As for the applicant's prospects of rehabilitation, that is addressed under ground 5.
I reject the submission that his Honour did not appreciate the severity of the applicant's symptoms of his bipolar disorder. His Honour said :-
It is reasonable to conclude, based upon consistent threads in the psychiatric opinion, that the offender suffered an Alcohol Abuse Disorder and Bipolar I (sic) Affective Disorder including a Major Depressive Disorder and mood changes. Bipolar I Disorder (sic) and Major Depression are serious mental disturbances. (italics not in original)
The relevant and critical question was how, and to what extent, did those mental disturbances explain the applicant's offending, extending as it did from the purchase of the gun safe in the week prior to 30 May 2011, the creation of the "dirkstraun" email account while the applicant was on route to Australia from Chicago on 30 May, through to the alteration of the gun safe in June, the purchase of the balaclava and baseball bat on 16 July and culminating in the offence itself on 3 August. The explanation advanced through the medium of the psychiatric opinions, supported by the untested assertions of the applicant, was that the applicant's behaviour was unmotivated by anything other than a need for treatment, in other words, "a cry for help". The judge was entitled to reject that explanation and the applicant does not contend otherwise. Having done so, there was only the objective evidence of the applicant's planning and execution of a very daring and serious attempt at extortion. The fact that it was daring, or even deserving of the description "bizarre", does not establish the relevant causal link.
The applicant's submission that the judge erred in finding that it was possible that his mood stabilised after entering custody because of cessation of alcohol use is qualified by this observation in the written submissions : "If this conclusion was to the effect that the improvement observed by Dr Westmore in the applicant's mental health by September 2012 was brought about by nothing more than a period of abstinence from alcohol abuse, then the finding is erroneous."
The judge's reasons do not support that construction. The finding was that the applicant's stabilisation of mood may, to a significant extent, be attributable to cessation of alcohol use. There are a number of references throughout the judge's reasons to the marked improvement in the applicant's mental health after commencement of the appropriate medication (Risperidone) in custody. This was no more than an observation which was supported by the applicant's own statement to Dr Westmore.
In summary, the applicant has not demonstrated that the sentencing discretion has miscarried. The judge's findings with respect to the causative link between the applicant's bipolar II disorder and the offending were reasonably open. There is no merit in grounds 1, 2 or 3.
Ground 4 : Error in Concluding that a Non-Parole Period Greater than the Standard Non-Parole Period was Warranted after only Considering the Objective Seriousness of the Offending Conduct.
The applicant's submissions on this ground claim that the judge committed Muldrock error (Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120) by, in effect, engaging in a two-stage approach to sentencing. That was evident, according to the applicant, from the judge's statement that :-
I am of the view that such is the objective gravity of the offending that there are reasons for setting a non-parole period greater than the standard non-parole period.
This statement is said to demonstrate that his Honour was using the standard non parole period as a "springboard" towards the ultimate sentence and that it therefore offended against the requirement of instinctive synthesis.
The full context of what his Honour said must be appreciated. The judge assessed the objective gravity of the offence as "of a most serious kind." That he did so by reference to the objective features of the offence is entirely consistent with Muldrock, in particular, at [27]. The judge then turned to a consideration of Muldrock under the heading "The Approach to Sentencing for an Offence Involving a Standard Non-Parole Period." The very first paragraph under that heading is :-
In Muldrock v The Queen ... the High Court, in a joint judgment, said that s 54B(2) of the Crimes (Sentencing Procedure) Act read with ss 54B(3) and 21A, requires an approach to sentencing for offences carrying a standard non parole period that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen [49]. That is, that a sentencing judge "... identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.
The judge then refers to that passage in Muldrock which obliges the court to undertake that exercise, "mindful of two legislative guideposts : the maximum sentence and the standard non-parole period." It is at this point that the judge reaches the conclusion that, based upon his assessment of the objective gravity of the offence, a non-parole period in excess of the relevant legislative guide post was warranted.
That conclusion is hardly surprising, given that the standard non-parole period represents one quarter of the maximum penalty. The level of the standard non-parole period for this offence no doubt reflects the very broad circumstances of offending under s 112(2). The indictable offence invariably charged under this provision is that of stealing, anything from a television set to valuable jewellery. However, a detention for advantage represents a different order of criminality, particularly in the circumstances of this case.
I do not accept that Zahra SC DCJ adopted a two-stage approach, especially after drawing attention in his remarks to the critical passages in Muldrock and its endorsement of McHugh J's judgment in Markarian. Moreover, the argument on this ground is a variant of that advanced in R v Ramea [2013] NSWCCA 310, wherein I said (Hoeben CJ at CL and Johnson J agreeing) :-
19 That passage from Markarian describes "two tier" sentencing :-
By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.
20 However, it is also relevant to bear in mind that :-
It is not useful to begin by asking a general question like was a "staged sentencing process" followed. That is not useful because the expression "staged sentencing process" may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account.
Markarian at [24] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
21 Markarian was not a standard non-parole period case. There is nothing in that decision which reduces the significance of legislative guideposts, such as the maximum penalty or a standard non-parole period, in the sentencing task. The plurality in Markarian at [30] and [31] recognised that careful attention ought be paid to legislative yardsticks. McHugh J at [80] recognised that maximum penalties and prescribed non-parole periods guide the judicial instinct. The vice identified in Markarian was determining a sentence referable to an offence, and then engaging in "arithmetical deduction" from that sentence for mitigating and/or subjective factors. The plurality also acknowledged at [39] :-
that is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden.
...
25 ...The argument that, in effect, every judge who deals with an assessment of the objective gravity of a given offence before a consideration of the offender's subjective case is ipso facto engaging in two-stage sentencing, gains no support from Muldrock and is at odds with the passage from Markarian set out at [20] above. Nothing in Muldrock prohibits an assessment of the objective gravity of an offence. On the contrary, it is explicitly recognised that the objective seriousness of an offence must be assessed wholly by reference to the nature of the offending [27]. Whether that is undertaken before or after dealing with the offender's subjective case is for the most part irrelevant to the detection of Muldrock error.
I would reject this ground.
Ground 5 : Error in Failing to Make a Finding Regarding the Applicant's Prospects of Rehabilitation.
This ground may be briefly dealt with. The applicant contends that his Honour made no finding regarding his prospects of rehabilitation.
At page 46 of the remarks on sentence, there appears a heading "Prospects of Rehabilitation". Under that heading, the judge canvasses Dr Westmore's reports of 2 March 2012 and 10 September 2012, wherein Dr Westmore said that the applicant's risk of re-offending was low to non-existent, provided that when he returns to the community he ceases drinking alcohol and receives psychiatric care. Dr Westmore also noted that the applicant did not represent an ongoing risk to the community, that he did not have an antisocial personality disorder and that his behaviour appeared to be uncharacteristic.
The judge also referred to Dr Phillips' view that with continuing psychiatric treatment and medication, it was unlikely that the applicant would re-offend.
Thereafter, His Honour said :-
The offender faces a lengthy period of imprisonment, which is likely to offer substantial specific deterrence. The risk of his re-offending could be said to be low.
Whilst his Honour did not expressly use the term "prospects of rehabilitation" in the course of this discussion, it is implicit in this portion of the remarks on sentence that his Honour accepted, subject to the conditions outlined by Dr Westmore and Dr Phillips, that the applicant had good prospects of rehabilitation.
In my view, this ground has no merit.
Ground 6 : Error in Failing to Find Special Circumstances.
This ground alleges error in the exercise of the sentencing discretion in failing to find special circumstances for the purpose of altering the statutory ratio between the head sentence and the non-parole period. The difficulty which the applicant confronts on this ground is that a sentencing judge is not bound to find special circumstances, with the consequence that it will be rare that this Court will intervene when the circumstances relied upon are not of a particularly special character: R v Fidow [2004] NSWCCA 172; R v Cramp [2004] NSWCCA 264; Jiang v R [2010] NSWCCA 277.
At page 47 of the remarks on sentence under the heading "Hardship in Custody/Special Circumstances", the judge referred to Dr Westmore's opinion with respect to the applicant's good response to treatment and concluded that it was not possible to predict that the applicant would find his conditions of imprisonment significantly more onerous or that he would spend any time in some form of restricted custody. It is not submitted that this finding was not open to his Honour.
The judge then dealt with the basis upon which special circumstances were pressed in the applicant's written submissions before him. Those matters were the applicant's age, the fact that it was his first time in custody, that his mental illness rendered his custody more onerous and the need for a lengthy period of supervision on parole. The judge had already dealt with the penultimate factor.
The judge went on to note that the sentence itself would provide for a lengthy period of parole supervision (3 years and 6 months). The applicant's age (51 at the time of sentence) and the fact that it was his first time in custody do not, in isolation or when considered with the other factors relied upon, compel the conclusion that special circumstances existed. In addition, the applicant acknowledges that the non-parole period was required to reflect the objective gravity of the offence. I return to this aspect of the sentence under ground 7.
In my view, there is no merit in this ground.
Ground 7 : Manifest Excess
The applicant's submissions on this ground commence with the observation that, allowing for the 25% discount for the applicant's early plea of guilty, the starting point for the head sentence amounted to 18 years' imprisonment, or 90% of the statutory maximum. It is then submitted that a sentence of that magnitude is reserved for a worst-case and that no such finding was made.
The applicant's review of sentences imposed for offences contrary to s 112 (2) and s 86 (1) of the Crimes Act demonstrates that no sentence has approached the length of the instant sentence, save for Tattersall v R [2011] NSWCCA 282, where the offender received a sentence of 14 years and 5 months imprisonment, including a non-parole period of 11 years for an offence of specially aggravated kidnapping, and R v Stott [2005] NSWCCA 36, where the offender was sentenced to 13 years' imprisonment, including a non-parole period of 9 years.
The applicant next submits that the instant offence did not approach a worst case for a variety of reasons, including the applicant's age and his prior good character, that the applicant suffered from a significant psychiatric illness at the time of his offending, and that whilst the package secured to the victim's neck had the appearance of a bomb, it was in fact harmless. With respect to this last factor, the applicant submits that the objective seriousness of the offence was reduced by the fact that there was no possibility of an explosion.
Accepting that the judge did not use the terminology "worst case" when assessing its objective gravity, I have no doubt that his Honour regarded it as approaching the worst case for an offence under s 112(2) and that a starting point of 18 years reflects his Honour's assessment. The reference to this offence as one "of a most serious kind" conveys in ordinary English words that the offence was at the upper end of objective gravity comprehended by the maximum penalty.
The judge's conclusions with respect to the applicant's careful and methodical planning and execution of the offence, the applicant's failure to disclose the harmless nature of the device thereby prolonging the victim's suffering, and the "guarded and qualified" expressions of remorse to various psychiatrists, are not challenged. The circumstances of the offence need only be related to reveal its extraordinary criminality.
The applicant's subjective case did little to reduce his moral culpability. The applicant's submission that the absence of a real explosive necessarily reduced the objective gravity of the offence is rejected. Had that been the case, no doubt the applicant would have been charged with a more serious offence, such as the specially aggravated form of the offence that would expose the applicant to a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years. The absence of aggravating factors does not operate in a mitigatory way : Louizos v R [2009] NSWCCA 71 ; 194 A Crim R 223, per Howie J at [91] - [92], (McClellan CJ at CL and Grove J agreeing).
The non-parole period of 10 years was entirely appropriate, in my view, to reflect the objective gravity of this offence. The fact that it represents twice the standard non-parole period says nothing about manifest excess.
Despite the severity of the sentence, I am not persuaded that it is plainly unjust. This ground of appeal also fails.
I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.
R A HULME J : I agree with Latham J.
BARR AJ : I agree with Latham J.
Decision last updated: 10 February 2014
8
23
2